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Markhoff & Mittman, P.C.

What Happens If You Return To Work While Your Disability Claim Is Pending?

When an individual stops working because of a physical or mental impairment, often times they apply for Social Security Disability benefits. The Administration's criteria for claimants submitting a disability application is that the injury or impairment has lasted for 12 months, it is expected to last 12 months, or it results in death. Most claimants fall under the expectation that their injury or impairment is expected to last 12 months and in order to actually recieve monetary benefits, the government requires that the claimant has been unable to work AND has actually been out of work for at least 12 months.

It's no secret that if a claimant's disability application is denied upon an initial application, a hearing could take several months to get. Depending on where you live, it could take anywhere from 9 to 20 months to receive a hearing date. So what happens if a claimant is fortunate enough to return to work in some capacity?

For starters, the Social Security Administration has put a dollar amount on what they consider work. If a person is earning over $1,000 per month, regardless of the amount of hours or type of work they are doing, they are considered to be working. If the person is earning under $1,000 per month, they are not engaging in "substantial gainful activity" - meaning, they are not working in the eyes of the Social Security Administration.

CLOSED PERIOD CASES
If an individual files an application for disability benefits, is denied upon the initial application, requests a hearing, then subsequently returns to work while waiting for their hearing to take place, a claimant's case is not automatically dismissed. A claimant, or their attorney, can allege a "closed period of disability" and argue that even though the claimant has returned to work, they were still out of work for a significant period of time (at least 12 months). Although the claimant is back to work, the individual will still have to appear at a hearing and the evidence and testimony will focus on the closed period of disability in question.

UNSUCCESSFUL WORK ATTEMPT
Many times, while claimants are waiting for their hearing date to arrive, they make attempts to return to the workforce in some capacity. Many disability claimants have no income coming in and the government does not compensate an individual until they are formally found disabled. Making an attempt to return to work is looked at favorably at the hearing level because it shows that you are trying your best to return to the workforce. Unfortunately, these work attempts do not always pan out.

So what does this mean for a disability claim?

If a claimant attempts to return to the workforce while their disability application is pending, and their attempt only lasts a few days, or even a few weeks, a Social Security Judge will view that as an "unsuccessful work attempt." In fact, if the attempt lasts less than 3 months, it will be deemed an unsuccessful work attempt and it will not count against the claimant at all. It will be like the claimant never actually returned to work in the first place. Unsuccessful work attempts actually further a claimant's case, regardless of the amount of money that was earned, because they show that the claimant is incapable of sustaining a job for a prolonged period of time.

The bottom line is, returning to work while your disability application is pending will not end your case. You may have a closed period of disability that might enable you to a lump sum of money. You also might find yourself in a situation that can be classified as an unsuccessful work attempt. Understanding these sitations and how to argue them in a hearing could be the difference between you winning and losing thousands of dollars for you and your family.

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